Extradition reform is urgently needed – the government must act now

Safeguards have to be built in to strengthen the rights of people like Richard O'Dwyer, facing extradition to the US

Sheffield Hallam university student Richard O'Dwyer, 23, allegedly earned thousands of pounds through advertising on the TVShack website before it was closed down by authorities in the United States. Photograph: Dominic Lipinski/PA

Wednesday 14 March 2012 11.03 EDT
First published on Wednesday 14 March 2012 11.03 EDT

Three months ago, after a long and heated debate, MPs voted for government action to reform our extradition laws as a matter of urgency. The government has yet to respond, but high-profile cases have kept extradition in the spotlight.

Christopher Tappin was extradited to the US three weeks ago. Denied bail, the 65-year-old from Kent is in solitary confinement and faces a 35-year sentence if convicted of trying to sell batteries for Iranian missiles. Yesterday, Theresa May ordered Richard O'Dwyer's extradition. The 23-year-old student is accused of running a website that infringed US copyright by providing links giving online access to pirated material. He faces 10 years if convicted. The activity he is accused of occurred here in the UK and it is unclear whether it would even amount to an offence under UK law.

In the last year, reports by parliament's joint committee on human rights and Sir Scott Baker identified clear flaws in our extradition laws. At Fair Trials International, we regularly see the devastating effect of these flaws. We are calling on the government to announce a reform bill in the Queen's speech on 9 May and have identified six simple reforms that would build vital safeguards into the system. These would strengthen the fundamental rights of people subject to extradition requests, without requiring treaty renegotiation.

Our proposed reforms include giving UK judges powers to halt extradition until they are satisfied that a case is trial-ready, and to refuse extradition on "forum" grounds, where the country seeking extradition is clearly not the appropriate place for trial.

Forum is a question that arises in the Richard O'Dwyer case, as it does in other high-profile cases, such as those of Gary McKinnon and Babar Ahmed. Clearly we cannot refuse to extradite British citizens on forum grounds in every case with a cross-border dimension. Yet, when real issues arise over the appropriate forum for prosecution, judges should have a back-stop power to refuse extradition where it would not be in the interests of justice.

Judges are well-placed to give proper weight to factors such as the defendant's country of residence (given the huge personal impact of extradition), the location of evidence and witnesses and the relative costs of extradition to, and trial in, the requesting state compared with a trial in the home state. There has been a steady increase in cases with a multijurisdictional aspect. As a result, the question of where someone should be tried for crimes with a transnational element will arise more often. We need clearer rules to deal with these cases transparently and fairly.

The UK must also now engage with the US to address the perceived imbalance in the US-UK extradition treaty. Under the treaty, any UK extradition request must be supported by information that provides a reasonable basis to believe that the person sought committed the offence (the "probable cause test"), before extradition from the US will be ordered. There is no corresponding requirement for US extradition requests, which must be accompanied by information that would justify the issue of an arrest warrant (the "reasonable suspicion test").

There may be little practical difference between the standards to be met under the two tests. But the treaty must not only be fair, but be seen to be fair. A letter of understanding between the US and the UK governments setting out two tests, with clear agreed guidelines on how they are applied in practice, would be a simple way of putting this beyond doubt.

The need for action is clear. Extradition requests under the European arrest warrant are rising year on year. Forum questions of the kind raised by many high-profile US extradition requests need to be resolved in a fairer, more transparent way. We should not be consigning unconvicted people to months or years of pre-trial detention in foreign jails, while prosecutors drag their feet. The government cannot put off vital extradition reform any longer.